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Supplementary Opinion: The Future of In-Person vs. Virtual Hearings at the Federal Court

By CILA on juin 27, 2022

This op-ed was authored by Nastaran Roushan, Canadian Immigration Lawyer.

I have reviewed Luke McRae’s article entitled “The future of in-person vs. virtual hearings at the Federal Court.” Mr. McRae provides thoughtful analysis on the challenges and benefits of virtual and physical hearings. However, I am providing some of my stronger opinions on the subject.

I do believe that there are circumstances when an in-person hearing is necessary. These circumstances include audio, visual or cognitive disabilities that cannot or will not be accommodated by the Court or the virtual platform being used. However, these are not the reasons cited by many lawyers who are opposed to virtual hearings. Rather, many lawyers have provided reasons that are inherently rooted in their inability to operate technology. This is concerning.

All law societies have rules of professional conduct mandating that lawyers are competent in performing legal services.  This competence is not limited to knowledge of the legal areas in which the lawyer is practising. It includes knowledge of practices and procedures. For example, Ontario’s Rules of Professional Conduct read:

“SECTION 3.1     COMPETENCE

Definitions

3.1-1 In this rule,

“competent lawyer” means…

(a) knowing general legal principles and procedures and the substantive law and procedure for the areas of law in which the lawyer practises,

(e) performing all functions conscientiously, diligently, and in a timely and cost- effective manner;

(k) otherwise adapting to changing professional requirements, standards, techniques, and practices.

Commentary

[2] Competence is founded upon both ethical and legal principles. This rule addresses the ethical principles. Competence involves more than an understanding of legal principles; it involves an adequate knowledge of the practice and procedures by which such principles can be effectively applied. To accomplish this, the lawyer should keep abreast of developments in all areas of law in which the lawyer practises.

[15.1] The Law Society Act provides that a lawyer fails to meet standards of professional competence if there are deficiencies in

(c) the records, systems, or procedures of the lawyer’s professional business…”

Technological knowledge and skills are competency requirements. Prior to the pandemic, many lawyers could evade this issue without consequence, simply because the justice system was so antiquated that expectations for lawyers were equally low. Justifying a lack of technological knowledge and the resulting lack of competency in practise is more difficult to justify – if at all – post-pandemic.  Lawyers need to familiarize themselves with basic applications, such as Adobe Acrobat and PDF readers, Zoom, Microsoft Teams, and various Cloud technologies. These are basic skill requirements. The courts are not asking that we learn to code or that we become proficient in complicated applications like Adobe Photoshop. They are asking that we become conversant with simple applications. These applications can be learned to an effectual degree by watching the many YouTube tutorials that distill various operations to five-minute video sessions, or by reading articles that troubleshoot the most common user problems.

Tellingly, I do not share the views of those nostalgic lawyers who yearn for a return to in-person hearings. Effective advocacy can be learned and taught virtually.  Ensuring that a judge is following along with arguments and sources can be remedied by being more attentive to the judge’s videocast. Clients have more of an opportunity to be seen and heard when they can attend a hearing logging in on their phones, and by having their face before the judge’s face on a monitor, rather than sitting twenty feet across the courtroom. I absolutely agree with Mr. McRae’s concerns about the Federal Court’s sporadic practice of requesting that parties turn their videos off. This is contrary to the right to be seen and heard within a proceeding. Furthermore, as explained by Mr. McRae, interruptions during at-home hearings can be minimized. Correspondingly, judges should demonstrate more empathy for the odd interruption that may arise – just like they do in a physical courtroom.

Finally, on a more intangible note, I find that virtual hearings are more egalitarian. Virtual hearings are cost-effective and efficient for applicants. Counsel and clients are not literally beneath judges who sit on their pedestal. There is no requirement to “respectfully” stand while addressing the Court, which inevitably leads to fumbling with a laptop while trying to prevent slippage of volumes of documents from the lectern.

While others may state that this in itself is a reason to return to in-person hearings – to preserve the sacrosanct and solemn nature of our administration of justice – I would ask those individuals to rethink who they believe are the beneficiaries of our administration of justice. It is not lawyers and judges who are participants.  The beneficiaries are the parties whose cases we present. To the extent that the beneficiaries of the administration of justice are adversely impacted by the preferences, knowledge and skills of the participants, this is an issue that needs to be remedied by those participants. It is not an issue that justifies a return to a bygone era of costly formality.

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